Part 1 (Rule of Recognition and Legal Validity): Hart started this chapter by saying that the social situation where three is a group habitually obeying orders backed by threats of the sovereign person/s is both a necessary and a sufficient condition of the existence of law. Though may be considered limited, it gives us a glimpse of truths, which can be presented where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation. This rule of recognition can be seen in variety of forms such as an authoritative text, a legislative enactment, a customary practice, and more. In a modern legal system where there are different sourcesof law, it becomes more complex since these sources must be ranked in an order of relative subordination (e.g. common lawis subordinate to a statute). It is important to differentiate subordinationand derivation. These are two different terms, but such as in the case of precedents, although they are considered to be subordinate from statutes, it is worth noting that they are as well derived from the latter. This just shows the complexity of the modern legal system. The existence of these rules is shownin the way in which they are identified, either by courts or other officials, such as the scoring rule of a game. During the game, the rules are already set, therefore it can be said that they are only being used. Seldom do they formulate new rules during the game. However, there is also authority in the persons of the umpires or scorers when they interpretthe rules set during the game.
The use of unstated rules of recognition, by courts and others is characteristic of the internal point of view, where those who use them manifest their acceptance as guiding rules. This is different from the natural expressions of the external point of view, such as “it is the law that…” which is mentioned often by judges when they identify a given rule. In a game, expressions such as “Out!” Or “Goal!” is used to assess the situation by reference to the rules.
Hart then introduces two kinds of statements, namely an internal statement and an external statement. The former talks about the statement used by one who applies the rule in recognizing some particular rule of the system as valid, and the latter focuses on the natural language of an external observer of the system who, without accepting its rule of recognition, states the fact that others accept it. If these statements are carefully distinguished from each other, many obscurities regarding the the notion of legal validitydisappear. To say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. The validity of law and its efficacy also should be distinguished. If by efficacy, we mean that a law is followed more often than not, then it does not mean they are connected with each other. However, if efficacy is one of the criteria for the validity of law, then a law is no longer valid as a rule if it’s no longer efficacious.
One who makes an internal statement concerning the validity of a particular rule of a system may be said to presupposethe truth of the external statement of fact that the system is generally efficacious. It would however be wrong to say that statements of validity meanthat the system is generally efficacious for though it is normally pointless to talk of the validity of a rule of a system which has never established itself or has been discarded, nonetheless it is not meaningless nor is it always pointless. There should then be a grasp in the normal contextual connection between the validity of an internal statement and the efficaciousness of an external statement. In many ways, this is the same as the predictive theory, where both theories’ motive is the conviction that either a statement that a rule is valid must ascribe some mysterious property which cannot be detected by empirical means, such as the prediction of future behavior of officials. Added to this, both suffers from the same mistake that it neglects the special character of the internal statement and treat it as an external statement about official action. The mentioned mistake becomes apparent when a judge gives a sentence, where he just presupposes but does not state the general efficacy of the system. His statement then is an internal statement and constitutes not a prophecy of but partof the reason for his decision.
The rule of recognition myst be provided with a criteria to identify and clarify what constitutes as law, including the ranking in order of relative subordination. Hart calls this as theultimate criterion and supremerule. The former is described to be that allows a rule referencing it to be still allowed to exist as law. This is not true with the supreme rulewhere rules identified by reference to it are not so recognized if they conflict with the rules identified with the ultimate criterion. Hart then proceeds by saying that the rule of recognitionis the ultimate rule of a system. For example, to identify if a law is valid, it is important first to identify whether the person or persons who legislated the law was/were actually given legislative power. This then presents the first criteria in terms of which the validity of a law is assessed. There are then various questions that we can ask about this ultimate rule, such as does it produce more good or evil, is there a moral obligation to do so, etc.
When we move from questioning the validity of law then to the actual application of the laws through the courts, we are now moving from the internal statement of law asserting the validity of a rule of the system to an external statement of fact which an observer of the system might make even if he did not accept it. There are things left unstated since the validity of the rules of recognitionis assumed or postulated. But it is important to see precisely what these presupposed matters are and not to obscure their character. They consist of two things. First, a person who seriously asserts the validity of some given rule of law himself makes use of a rule of recofnition which he accepts as appropriate for identifying the law. Second, in terms of which he assesses the validity of a particular statute is not only accepted by him but is the rule of recognition actually accepted and employed in the general operation of the system. If the truth of this presupposition were doubted, it could be established by reference to actual practice, which is the actual recognition of courts and the general acquiescence of the public.
A serious objection to this theory is that talk of theassumptionthat the ultimate rule of recognition is valid conceals the essentially factual character of the second presupposition which lies behind the lawyers’ statements of validity. Nonetheless, it is important to distinguish assuming the validityfrom presupposing the existence of such a rule. Hart then compared the situations between the simple system of primary rules and a mature legal system. In the former, the assertion that a given rule existed could only be an external statement of fact. Once their existence has been established as a fact, we should only confuse matters by affirming or denying their validity, or by saying that we assumedbut could not show their validity. On the other hand, in a mature legal system, we have a system of rules which includes a rule of recognition so that the status of a rule as a member of the system now depends on whether it satisfies certain criteria provided buy the rule of recognition. It may now be an internal statement applying an accepted but unstated rule of recognition. Its existence then is a matter of fact.
Part 2 (New Questions): Hart says that these new questions are also difficult questions that requires full answers. The first difficulty is that of classification, for the rule which is used to identify the law escapes the conventional categories used for describing a legal system. This aspect of things extracts from some a hard analysis: how can we show that the fundamental provisions of a constitution which are surely law are really law? Some argue that at the base of legal systems there is something which is not law, but which is meta-legal. In our case, we call the rule of recognition as both as law, because it provides for criteria for what constitutes a law therefore it is essential that it becomes part of the legal system, and as fact, because to assert that such a rule exists is indeed to make an external statement of an actual fact concerning the manner in which the rules of an efficacioussystem are identified. Hart says that it cannot be identified as only one of the two.
A second set of questions arises out of the complexity and vagueness of the assertion that a legal system existsin a given country or among a given social group. In Austin’s formula of a general habit of obedience to orders, it fails to reproduce or distorts the complex facts which constitute the minimum conditions which a society must satisfy if it is to have a legal system; this only then caters for what can be called as an end product of the legal system. The relationship with law involved here can be called obedience only if that word is extended so far beyond its normal use as to cease to characterize informatively these operations. We cannot say that a legislator is obeyingthe laws when it is exercising its legislative powers. Nor, in failing to conform with these rules do they disobey a law, though they may fail to make one.
Hart then proceeds by saying that just because a legal system is a complex union of primary and secondary rules, this evidence is not all that is needed to describe the relationships to law involved in the existence of a legal system. There should be a relevant relationship between the officials of the system to the secondary rules which concern them as officials. Hart says that what is crucial is that there should be a unified or shared official acceptance of the rule of recognition containing the system’s criteria of validity. What makes obediencemisleading as a description with regards the legislators and of what courts do in applying an accepted ultimate rule of recognition, is that obeying a rule needinvolve no thought on the part of the person obeying that what he does is the right thing both for himself and for others to do. His attitude is not critical in the involvement whenever social rules are accepted and types of conduct are treated as general standards; he may only think of the rules as demanding for himself (with fear of penalty and punishment) and not involving other people. But this merely personal concern with the rules, which is all the ordinary citizen may have in obeying them, cannot characterize the attitutde of the courts to the rules with which they operate as courts.
Hart says that there are therefore two minimum conditionsnecessary and sufficient for the existence of a legal system. First are those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and the second, that its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials. The first condition is the only one which private citizens need satisfy: they may only obey for his part only. The second condition, however, must also be satisfied by the officials of the system. They must regard these as common standards of official behavior and appraise critically their own and each other’s deviations as lapses.
Part 3 (The Pathology of a Legal System): Hart started this part by stating that the existence of a legal system must therefore be drawn from two different sectors of social life, namely the normal unproblematic casewhere we can say confidently that a legal system exists and the other where there is vague existence of such. He stated that the official sector may be detached from the private sector, in the sense that there is no longer general obedience to the rules which are valid according to the criteria of validity in use in the courts. In each of these cases, there may be half-way stages during which the courts function, and still use the criteria of legal validity of the old once firmly established system. The stage when it is clear that a law ceases to exist is one that has no exact determination.
Hart proceeds by discussing about the effects of interruptions and resumption of laws, and the difficult questions that arise from such events. What is most important to understand is that this question may notbe one of fact, since if it were one, it would have to be settled by asking whether the interruption was so protracted and complete that the situation must be described as one one which the original system had ceased to exist and a new one was set up similar to the old. Instead, paradoxically, it might arise as a question of law within the very system of law existing since the restoration. However, Hart says that there is only a paradox here id we think of a legal system’s statements of law, concerning what are to be deemed to be phases of its own past, present, or future existence, as rivals to the factual statement about its existence, made from an external point of view (e.g. a law made in the British parliament cannot be made effective to the USSR).
Conversely, it can be illustrated by the “birth” of a new rule from the womb of an old one, where the legal system in the former colony has now a local root in that the rule of recognition specifying the ultimate criteria of legal validity no longer refers to enactments of a legislature of another territory. The new rule simply rests on the fact that it is accepted and used as such a rule in the judicial and other official operations of a local system whose rules are generally obeyed. These rules are then valid because, under the rule of recognition locally accepted, enactment by the local legislature is an ultimate criterion of validity. This may be achieved in many different ways. For one, the parent legislature may finally retire from the scene by announcing legislative power over the former colony. Another way may be made through violence. But in either case, we have at the end of this development two independent legal systems. When there are two legal systems in place (such as the situation in the English law and the Westminster statute – law of the colony), the two do not logically conflict. We can, if we like, say that the statement of fact is true and the proposition of English law is correct in English law.
To complete this crude survey of the pathology and embryology of legal systems, we should notice other forms of partial failure of the normal conditions, the congruence of which is asserted by the unqualified assertion that a legal system exists. Till the population became divided and law and order broke down it would be misleading to say that the original legal system had ceased to exist: for the expression “the same legal system” is too broad and elastic to permit unified official consensus on allthe original criteria of legal validity to be a necessary condition of the legal system remaining the same.
Hart ends this chapter by stating that all rules involve recognizing or classifying particular cases as instances of general terms, and in the case of everything which we are prepared to call a rule it is possible to distinguish clear central cases, where it certainly applies and others where there are reasons for both asserting and denying that it applies. This aspect of law is often held to show that any elucidation of the concept of law in terms of rules must be misleading. To insist on it in the face of realities of the situation is often stigmatized as conceptualism or formalism, and it is to the estimation of this charge that we shall now turn.
Straight from the Hart 